More specifically, Maintenance claims that Local 82 threatened Gustave Ring, who owns and operates two buildings covered by a labor contract with Local 82, with a strike, an object of which was to force Ring to cease doing business with Maintenance. Local 82 denies any liability on both factual and legal grounds, as will appear. The matter was tried to the Court without a jury and the following constitutes the Court's findings of fact and conclusions of law.

Local 82 entered into a three-year agreement with Ring dated September 8, 1971. The agreement contained an arbitration clause and an explicit undertaking not to strike or picket during the term of the agreement. Under the provisions of the contract (paragraph 17), Ring undertook not to subcontract the work covered by the agreement without ten-day notice to the Local and agreed that any subcontract must provide that employees of the subcontractor "shall be paid wages at least equal to the wages provided for in the agreement." Local 82 represented maintenance employees such as maids, janitors and elevator operators, and the contract treated two buildings owned by Ring as a package.

Beginning in January, 1974, Ring commenced consideration of subcontracting the work, believing that the quality of the maintenance in his buildings and its cost required a change. Local 82 gave the required 90-day notice in June of 1974 that it wished to negotiate a new contract when the existing contract expired in September and Ring, on July 3, gave ten-day notice that he intended to subcontract all the work, except elevator operators, to Maintenance as of August 1, 1974. In response, the Local requested a meeting and one was held at the Local's convenience on July 16, but in the meantime, on July 13, the work was actually subcontracted by Ring to Maintenance. On July 16, representatives of Ring and the Local met. The testimony conflicts as to what occurred at this crucial meeting. It is clear that Local 82 considered Maintenance as a substandard, non-unionized concern and objected vigorously to the subcontract on the ground that Maintenance would not maintain the standard of hourly pay, vacation and sick leave benefits that were in the contract. Whether Maintenance in fact intended to pay at a rate in accordance with the contract is in dispute.
*fn1"
However, it is clear from the entirely credible testimony of the President of Local 82, Ms. Neal, that at the time of the crucial July 16 meeting she and the other members of the Union's negotiating team reasonably believed, based on conversations with Maintenance's employees on other jobs, that Maintenance's general practice was to pay substandard wages. By his own admission, Ring's representative, Mr. Cook, did nothing to correct this impression at the July 16 meeting, stating that he didn't know what Maintenance was going to pay and didn't care since that was entirely between Maintenance and its employees.

The Court does not reach the defendant's contention that it merely announced an intention to publicize a dispute with Maintenance with "informational" picketing at Ring's premises, activity which is arguably protected under the doctrine of the "Tree Fruits" case, supra, because the Court has concluded after weighing the evidence as a whole that defendant was engaged in a primary dispute with Ring.

The evidence showed that within a few days after Local 82 notified Ring of its desire to renegotiate the terms of their contract, Ring subcontracted out the bulk of the work being performed by the Union to Maintenance. Implicit in the demand by Local 82 for renegotiation was a threat to use economic power in the form of a strike if a new contract could not be reached through collective bargaining. Rather than allowing this process to run its course, Ring sought to short-circuit it by contracting out the bulk of the work previously done by members of Local 82.
*fn2"
Furthermore, the evidence showed that Maintenance, if not indeed an active co-participant in the plan, was at least well aware of it.
*fn3"

Had the process of bargaining on the request of Local 82 for contract renegotiation run its course of impasse, and had the Union struck before Maintenance was brought in to take over the work previously performed by striking union members, there can be no doubt under the decided cases that Maintenance would have been an "ally" unable to complain of a "secondary boycott." Rather than allowing events to follow that course, however, Ring, with the full knowledge and concurrence of Maintenance, pre-empted the process by bringing in Maintenance to take over the union work at the mere threat to invoke economic power which was implicit in the request by Local 82 for renegotiation.
*fn4"
The "ally doctrine" has the salutary purpose of preventing congressional solicitude for the rights of neutrals from becoming perverted into a device for vitiating the protected rights of union members to bargain, and if need be, to strike; it cannot be subverted by formal requirements which ignore the underlying realities.

Therefore, on the facts of this case, where a primary employer seeks to avoid imminent bargaining by subcontracting out work which would otherwise be performed by union members, and at least where the record also indicates that the subcontractor was a knowing party to such a plan, the Court holds that the subcontractor has become an "ally" who has injected himself into the primary dispute to such an extent that he can no longer seek damages for the threat of a secondary boycott.

Judgment is entered for defendant. Defendant's request for counsel fees is denied.

So ordered.

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